by Douglas Ankney

The Supreme Court of Kentucky held that the Parole Board’s (“Board”) current conditional-freedom final revocation hearing procedures for post-incarceration supervisees violate an offender’s due process rights.

David Wayne Bailey was released from prison and placed on a five-year period of post-incarceration supervision. A condition of that supervision was successful completion of a sex offender treatment program (“SOTP”).

Bailey enrolled in the SOTP, but he was terminated because he was allegedly not making efforts to accept responsibility for his sexual convictions and because he was allegedly disrupting his therapy group. Bailey received notice that due to his failure to complete the SOTP, a preliminary revocation hearing would be held on July 16, 2013. An administrative law judge (“ALJ”) conducted the hearing at which Bailey was represented by counsel and presented witnesses and evidence, including mitigating testimony. He vigorously disputed the reasons given for his SOTP termination, asserting he was actually terminated because of his anti-abortion views that conflicted with those of his therapist.

The ALJ found probable cause to believe Bailey violated the terms of his supervision by being terminated from the SOTP. Bailey was subsequently served with a violation warrant and remained in custody pending a final revocation hearing before the Board. Bailey was not provided notice as to time and place of the final revocation hearing, did not have counsel to represent him at the hearing, and was not permitted to present witnesses or further testimony at the hearing. The Board revoked Bailey’s post-incarceration supervision, providing him with only a summary of its decision. Bailey then filed, pro se, a petition for a writ of mandamus challenging the Board’s procedures on due process grounds. The circuit court dismissed the petition for failure to state a claim.

The court of appeals ruled that Bailey was not denied due process at the final revocation hearing when he was not permitted to present evidence; however, the appeals court held that KRS § 31.110(2)(a) created a statutory right to counsel for offenders at the final revocation hearing. Thus, the court of appeals reversed the circuit court’s judgment and remanded for further proceedings. The Supreme Court granted discretionary review.

The Court first addressed the issue of mootness as Bailey’s sentence had expired prior to the Court hearing his appeal, and the Court’s decision wouldn’t grant him any relief. The Court determined it wasn’t moot because: (1) the question presented was of public importance, (2) there was a need for an authoritative determination for the future guidance of public officers, and (3) there was a likelihood of future recurrence of the question. Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014).

The Court observed that post-incarceration supervision is akin to parole. Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010). Because revocation of post-incarceration supervision results in loss of liberty, the Board’s revocation procedure requires both a preliminary hearing and a final hearing. Morrissey v. Brewer, 408 U.S. 471 (1972). These procedures are required for revocation of probation as well. Gagnon v. Scarpelli, 411 U.S. 778 (1973). The essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it. Mathews v. Eldridge, 424 U.S. 319 (1976). The preliminary hearing is to be a minimal inquiry to determine if probable cause exists to believe the offender violated the terms of his conditional release. Morrissey.

The final revocation hearing “must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The [offender] must have [a timely] opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest the violation does not warrant revocation.” Id.

The minimum final revocation hearing procedures must include: (1) written notice of the claimed violations, (2) disclosure of the evidence against the offender, (3) opportunity to be heard in person and to present witnesses, (4) right to confront and cross-examine adverse witnesses, (5) a “neutral and detached” hearing body, and (6) a written statement by the factfinders describing the evidence relied on and reasons for revocation. Id.

The final hearing is more comprehensive than the preliminary one because it “involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole.” Gagnon. The decision as to whether counsel is needed at the hearing is to be made on a case-by-case basis and presumptively arises when a petitioner claims he has not committed the alleged violations or there are substantial mitigating reasons that make revocation inappropriate and those reasons are complex or difficult to present. Id. The standard for revocation of probation is proof, by a preponderance of the evidence that a violation has occurred. Hunt v. Commonwealth, 326 S.W.3d 437 (Ky. 2010).

The final revocation hearing procedures in Kentucky permit the Board to revoke post-incarceration supervision based only on the evidence in the administrative record made before the ALJ at the preliminary hearing. 501 Ky. Admin. Reg. 1:070 § 3(2). Any additional evidence must be presented in writing. Id. Only when the Board exercises its discretion to hold a special hearing are witnesses permitted to testify. Id.
The Court concluded that Bailey was deprived of due process because: (1) an evidentiary final hearing is a minimal due process right not satisfied by the Board’s reliance upon the record of the preliminary hearing, (2) the Board’s revocation relied on evidence sufficient for a probable cause determination, which is significantly less than proof by a preponderance of the evidence, (3) the Board neither informed Bailey of his right to request counsel at the final hearing nor did it determine whether counsel was needed, even though Bailey challenged the therapist’s alleged reasons for terminating him from the SOTP, (4) Bailey was not provided notice of the time and place of the hearing nor was he given notice of the evidence to be used against him, and (5) the summary decision provided by the Board failed to satisfy the requirement for a statement of reasons for revocation and the evidence relied upon. For reasons not pertinent to Bailey’s due process claims, the Court also concluded that the court of appeals erred when it determined KRS § 31.110 created a statutory right to counsel.

Accordingly, the Supreme Court affirmed the appellate court’s decision reversing the circuit court’s order of dismissal but reversed the appellate court’s decision regarding Bailey’s due process rights and regarding KRS § 31.110. However, since Bailey’s sentence had expired by the time the appeal was decided, it was not necessary to remand. See: Jones v. Bailey, 576 S.W.3d 128 (Ky. 2019). 

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